On 5 October 2023, the Supreme Court, sitting in the Extraordinary Review and Public Affairs Chamber, rejected complaints against the resolutions of the National Electoral Commission (PKW) on guidelines for district electoral commissions lodged by entities entitled to participate in the referendum campaign in radio and television programmes.
In the case I NSW 74/23, the Supreme Court indicated that the challenged resolution of PKW No. 211/2023 of 25 September 2023 was made public on 25 September 2023, thus the time limit for lodging a complaint expired on 2 October 2023. The complaint against the above resolution was received by the Supreme Court on 5 October 2023 (which is equivalent to the time of its lodging). Under Article 9(1) of the Electoral Code (EC), it is irrelevant that the Complainant sent the letter by registered mail on 2 October 2023. Therefore, the Supreme Court rejected the complaint due to the failure to comply with the time limit for lodging it.
In the case I NSW 73/23, the Supreme Court found that the entity entitled under Article 48 of the Act on the nationwide referendum (NRA) is not eligible to lodge a complaint against the resolutions of the PKW on guidelines for district electoral commissions. The Supreme Court held that Article 161a(1) of the EC cannot be applied to such entities by virtue of the reference provided for in Article 92(1) of the NRA.
Thus, the Supreme Court departed from the view expressed, i.a., in the Supreme Court judgment of 7 September 2023 (I NSW 14/23), according to which distinguishing by the legislator of the group of entities entitled to participate in the referendum campaign in radio and television programmes would justify granting such entities also the right to challenge PKW resolutions on guidelines for district electoral commissions, regardless of the issue the guidelines concern. The Supreme Court found that there is no analogy between the entities entitled in the referendum under Article 48 of the NRA and the representatives of election committees in parliamentary elections, who are granted the right to challenge the PKW guidelines in parliamentary elections under Article 161a(1) of the EC, which allows the former to be granted the right to challenge the PKW guidelines. The Supreme Court held that the lack of the possibility to challenge the guidelines of the PKW in a nationwide referendum is not due to the legislator's omission, but to the legislator's conscious decision, which the Supreme Court is not authorised to change by its jurisdiction.